State ex rel. Jackson County v. Waltner

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON
• Citation: State ex rel. Jackson County v. Waltner, 100 S.W.2d 272, 340 Mo. 137 (Mo. 1936)
• Decision Date: 22 December 1936
• Docket Number: 35302
• Parties: State of Missouri at the relation of Jackson County, David E. Long, J. W. Hostetter and Battle McCardle, as Judges of the County Court of Jackson County, and William Hicks, as Clerk of the County Court of Jackson County, Petitioners, v. Marion D. Waltner, Judge of the Circuit Court of Jackson County and Clarence B. Reed

100 S.W.2d 272

340 Mo. 137

State of Missouri at the relation of Jackson County, David E. Long, J. W. Hostetter and Battle McCardle, as Judges of the County Court of Jackson County, and William Hicks, as Clerk of the County Court of Jackson County, Petitioners, v. Marion D. Waltner, Judge of the Circuit Court of Jackson County and Clarence B. Reed

No. 35302

Supreme Court of Missouri

December 22, 1936

Provisional rule made absolute.

Jno. B. Pew, Rufus Burrus and Robert B. Fizzell for petitioners.

The sole purpose of the petition filed by the respondent Reed in the Circuit Court of Jackson County is to contest, because of alleged fraud, the special bond election held in said county on August 4, 1936, and to enjoin the issuance of the bonds of Jackson County authorized at said election. Under the decisions of this court said circuit court has no jurisdiction of the subject matter of the suit filed by the respondent Reed, and a final writ of prohibition should issue by this court. State ex rel. Wahl v. Speer, 284 Mo 45, 223 S.W. 655; Boney v. Sims, 304 Mo. 369, 263 S.W. 412; Long v. Consolidated School Dist. No. 7, 331 Mo. 302, 53 S.W.2d 867; State ex rel. City of Clarence v. Drain, 335 Mo. 741, 73 S.W.2d 804. Dicta contained in Robinson v. Wiese, 210 S.W. 889, relied upon by the respondents, has been overruled by the decisions above referred to. Boney v. Sims, 304 Mo. 380, 263 S.W. 412. The contention of the respondents that the action filed in the circuit court by the respondent Reed is not a suit to contest a bond election but is an action to protect the property of said respondent as a taxpayer, is without merit. State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; State ex rel. City of Clarence v. Drain, 335 Mo. 741, 73 S.W.2d 804.

Proctor & Proctor for respondents.

(1) The permanent writ of prohibition should be denied. The Circuit Court of Jackson County, Missouri, at Independence, had jurisdiction over the injunction suit filed by Clarence B Reed, respondent. The Supreme Court of Missouri in 1919, in Division One, passed upon this point and squarely expressed itself contrary to the contention of the petitioners here. Robinson v. Weiss, 210 S.W. 889. (2) The Legislature of Missouri has repeatedly in statutes granted to taxpayers the right and the means to attack the validity and legality of bond issues in a court of equity. (a) Section 2915, Revised Statutes 1929, provides that registration of bonds by the State Auditor shall be prima facie evidence only of the facts therein stated and shall not preclude or prohibit any person from showing or proving the contrary in any suit or proceeding to test or determine the validity of such bonds. (b) Sections 2926, 2927 and 2928, Revised Statutes 1929 provide that the State of Missouri, or any political subdivision thereof, may file in the circuit court a petition praying for pro forma decree declaring the validity of the bonds, and any taxpayer is given the right to intervene in any such proceeding and show that the laws of Missouri were not complied with in the submission and execution of bonds. (c) Section 2920, Revised Statutes 1929, grants to any taxpayer the right to prevent the registration of any bonds illegally issued. (d) Section 2922, Revised Statutes 1929, authorizes a political subdivision to submit to the qualified voters' proposals as to whether any judgment indebtedness of such political subdivision shall be funded, and provides further specifically that in any such election in which a proposal may be submitted two-thirds or more of the qualified voters shall vote in favor of the issuance of such proposal. (3) The Constitution of Missouri provides that all bonds shall be approved by two-thirds of the qualified voters voting in a bond election. (a) The Constitution of Missouri has conferred upon courts of justice the duty of affording a remedy for every injury to person, property or character. Art. II, Sec. 10. (4) Most of the jurisdictions of the United States have held that a taxpayer may attack the validity or legality of a bond issue either under a statutory authority so to do or by reason of the inherent power of a court of equity to grant relief in cases of fraud or to protect a taxpayer in his property rights. Brown v. Randolph County Court, 45 W.Va. 827, 32 S.E. 165; Krieschel v. Comas, 41 P. 186, 12 Wash. 428; Braden v. Stumph, 16 Lea, 581; Maxey v. Muach, 30 Ark. 485; Ulrich v. Clement Em., 124 N.Y.S. 133; Shaw v. Circuit Court, 27 S.D. 99, 129 N.W. 907; Marsden v. Harlocker, 49 Ore. 90, 85 P. 328.

Ellison, C. J. All concur, except Frank, J., who dissents.

OPINION

ELLISON

Original proceeding in prohibition. The relators Jackson County and the judges and clerk of the county court thereof, seek to prohibit the respondent, Hon. Marion D. Waltner, judge of the Jackson County Circuit Court at Independence, from entertaining jurisdiction of a suit in equity there pending, wherein the respondent Clarence B. Reed prays a permanent injunction restraining the relators from executing, issuing and selling $ 2,761,300 in county bonds authorized at a special bond election held on August 4, 1936, which was also the date of the State primary election. Two proposals were submitted at the election: one for the issuance of $ 2,465,000 in bonds for the purpose of paying and funding judgment indebtedness of the county, and one for the issuance of $ 296,300 in bonds for the purpose of refunding outstanding judgment bonds.

In due course our provisional rule in prohibition was issued and the respondents made return thereto, admitting all necessary formal steps were taken for the holding of the special bond election, and that on the face of the returns therefrom more than two-thirds of the qualified voters of the county approved the two bond proposals. But they affirmatively allege the petition of the respondent Reed in the equity suit below states a good cause of action, and that the allegations of fact therein are true; that the respondent Waltner is lawfully possessed of the cause and has inherent power in equity to determine the same; that the jurisdiction of the Circuit Court of Jackson County over the cause is derived from the common law and provisions of the State Constitution; that said equity suit is not a proceeding to contest the bond election, except incidentally, but is for the purpose of protecting the property of the respondent Reed, and other taxpayers similarly situated, against the burdens which would be imposed thereon by the issuance of said bonds. The relators filed a motion for judgment on the record praying that our provisional rule in prohibition be made absolute. The case therefore turns solely on questions of law raised by the return of the respondents, and the petition of the respondent Reed.

Reed's petition for injunction covers about nineteen pages of the printed record. It starts with a general charge "that there existed at the time of the submission of said proposals a wicked and illegal collusion and conspiracy by and between T. J. Pendergast, who dominates and controls the political machine which bears his name, and certain of the election officials, to certify, after the election, that the proposals had carried, regardless of the number of votes which might be cast against them."

It is then alleged that as a part of said conspiracy the bond election was held on August 4, 1936, the day of the State primary election, because it was known many voters opposed to the bonds would be absent from Jackson County at that time; and because said political organization planned to count, cast and certify as many votes, legal and illegal, as it could muster for its candidates for nomination in the primary election, and to certify the same votes for the bonds; that a large number of the judges and clerks of the election had a personal financial interest in the issuance of the bonds because the county was indebted to them in the sum of $ 138,000 for like services in a former election, which indebtedness was to be discharged out of the new bond issue; that more than half of said election judges and clerks were not appointed as contemplated by law, but were selected through the influence of said Pendergast organization and were in collusion with it.

Next the petition charges the election was not free and open, as required by the State Constitution, but that in each precinct of each ward in Kansas City except a few scattered precincts in the Fifth, Sixth, Seventh, Eighth, Fifteenth and Sixteenth wards, the same was attended by oppression, intimidation, coercion, brutalities, false counts and false certification; that the election in a majority of precincts was tainted, saturated and vitiated by fraud; that the entire vote in the First, Second, Third, Fourth, Ninth, Tenth, Eleventh and Twelfth wards was so permeated with fraud on the bond proposals that it should be thrown out and disregarded; and that less than two-thirds of the qualified voters of the county voting at the election voted for the bonds.

On ten pages of the printed petition are set out tables showing the vote on the bond election with the number of registered voters in 142 voting precincts in Kansas City wherein there was an aggregate vote for the bonds of 75,609, against the bonds of 1230, and an aggregate registration of 96,954. It is alleged that the vote in twenty-one of these precincts was greater than the total registration therein; and that in sixty-five precincts there were no votes against the bonds [340 Mo. 141] and 34,484 votes for the bonds; that in one precinct where 1144 votes were certified for the bonds not to exceed seventy-five persons entered the polling place at the election to vote thereon; and that in another precinct where 397 votes were certified for the bonds...